The Constitution of India is an organic living document that sets a strong foundation of principles that are to be reflected in subsequent legislation and policies. The Preamble also called the ‘heart of the Constitution,’ sets forth certain principles which cast a responsibility on the state to sustain social and economic security, making it the state’s duty to set up a sovereign, socialist, secular, democratic republic.

It must be noted that it is not only the preamble which promotes those objectives but certain landmark judgments like Keshavananda Bharati Sripadgalvaru v State of Kerala (of 1973), which further substantiate the theory of basic structure for the Constitution of India, resulting in the drafting of the fundamental rights under Part III of the Constitution based on the same objectives.  

Thus governing a diverse country like India with its dynamic objectives like the ones stated in the Preamble not only brings about a plethora of challenges but also preaches citizens how to maintain order and harmony. The power vested with the state, coupled with fundamental rights bestowed on the citizens, makes the state answerable to the citizens, thereby striking a balance in the powers of the state as well as the rights of the people to question the same.  

‘Love Jihad’

In light of the recent debates surrounding the introduction of bills by several Bharatiya Janata Party (BJP) states in criminalizing the act of interfaith marriage with an aim to circumvent the issue of ‘love jihad’ not only violates the basic structure of the Constitution but also is inconsistent with the constitutional values, which dictate the basic foundation of every legislation or document with the governing authority. 

Several states, including Madhya Pradesh, Uttar Pradesh and Karnataka has said they will bring in laws to check ‘love jihad’, a term coined by Hindutva groups to allege that it is an organized conspiracy by Muslim men to target women belonging to non-Muslim communities for conversion to Islam by feigning love and bring about a demographic change in India.

The proposed bill violates the objective of secularism, as it distinguishes between citizens on the ground of their religion, converting the act of interfaith marriage into a crime. 

India – a secular nation

It must be noted that the Constitution of India stands for a secular state, which implies that the state has no official religion. The objective of secularism gives full opportunity to its citizens to profess, practice, and propagate the religion of their choice. Thus, bringing the above argument into perspective, one can come to a conclusion that the proposed bill criminalizing interfaith marriages is not only just putting impedance into fundamental rights of the citizens, but is also unconstitutional in its essence. 

Moreover, it must be emphasized the fact that Dr.  Sarvepalli Radhakrishnan, former President of India, in his book Recovery of Faith explained secularism in India as follows: “When India is said to be a secular state, it does not mean that we reject the reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It does not mean that secularism itself becomes a positive religion or that the State assumes divine prerogatives…We hold that one religion should not be given preferential status… This view of religious impartiality, or comprehension and forbearance, has a prophetic role to play within the National and International Life.”

On reading our former leader’s views on what he sought and expected Indian secularism to be and comparing the same to the on-ground situation where the citizens, through various forms and processions have to remind the governing authorities their responsibility time and again, it not only paints a picture of despair and dejection, but also looks into the eyes of the State, demanding an answer. 

The BJP governments in these states, in their quest to criminalize interfaith marriages, are going ahead with coming out with this law, despite not even a single case of ‘love jihad’ having been detected by the central investigative teams to date. Moreover, in February, the central government told Parliament that there was no definition of the term ‘love jihad’ and no such cases were reported by central investigative agencies.

This not only renders the concern of the BJP state governments meaningless, but also shows the religious inclination of the state, which further puts question mark  on the governing authority's adherence to India's constitutional principles. Assuming that the local authorities failed to report such cases and the concept  of ‘love jihad’ is actually a threat faced by Indian women, the act of criminalizing interfaith marriages in not on any grounds ‘reasonable, fair and just’ and might have some serious repercussions if implemented.

An arbitrary, dictatorial move

Thus, the introduction of such an arbitrary bill can be construed as a dictatorial move, as it not only blatantly opposes the constitutional values but also impedes citizens from practicing their right to “freedom of religion.” 

However, in event of the State being successful in determining the gravity of the threat posed by the supposed practice of ‘love jihad’ by presenting facts and data of the victims, the issue can be successfully brought into light and bills can be drafted in order to safeguard the rights of citizens and protect them from forceful conversions.

While the Madhya Pradesh government plans to bring a provision of five years in jail for forced conversions for marriage, the Haryana government also indicated that it is planning to form a committee to study and draft law to that effect. Both Uttar Pradesh and Karnataka have also said they will bring in legislation to end ‘love jihad.’ The proposed bills by these state governments propose the criminalization of ‘love jihad’ on grounds of forced conversion. Therefore, if the element of forced conversion is proved, one can advocate for the rights of the victim on the grounds of their right to profess any religion falling under the ambit of the fundamental right of freedom of religion.

Looking at the issue from a drafter’s perspective and assuming that ‘love jihad’ poses a grave and imminent threat to the citizens of India on grounds of forceful conversion, there can be two approaches and possible solutions which can help us circumvent the issue: 

*Drafting a bill proposing all the interfaith marriages to be held by the protocol dictated by the Special Marriages Act would not require either of the parties to convert from one religion to another, thus finding a middle ground between the interest of interfaith marriages and the 'concern' of BJP state governments. 

* An alternate approach to the same can be adding a strict clause of proving forced conversion if the act of ‘love Jihad’ is criminalized. The marriage can be annulled and the conversion can be deemed void if the convertee successfully proves that their conversion is forced. 

(The writer is a senior editor at an open access journal that covers contemporary topics pertinent to the Indian legal system. She is pursuing BBA LLB (Hons) from Jindal Global Law School. Views expressed are personal)